When the topic of divorce rears its ugly head, one of the first things to come up is invariably child custody. Wanting what’s best for your children is one of the most important values for a good parent to have. The custody and wellbeing of a child that has not yet been born, however, is a rare topic in divorce courts.
It might become more common, however, as Governor Doug Ducey recently made Arizona the first state in the country to observe the custody of frozen embryos in divorce cases. Arizona Senate Bill 1393 formally codifies a new set of laws and regulations that go with custody actions around embryos.
Determining embryo custody
Senate Bill 1393 addresses several potential scenarios that you may find yourself in if you are going through a divorce and you and your ex have frozen embryos.
The first step is determining which party wants the embryo. In the event that only one party wants the embryo, it will be awarded to the person who intends to use the embryo to establish a real pregnancy and allow it to grow to birth – even if it goes against the wishes of the other party. The other parent has no legal responsibility for the child after birth.
It may be the case that both you and your former spouse both want custody of the frozen embryo. In that situation, the new law states that it will be awarded to the person with the highest medical probability of becoming pregnant.
For example, if a 45-year-old man and a 28-year-old woman are divorcing, it is most likely that the embryo would be awarded to the woman because she is more likely to become pregnant. Conversely, if a 45-year-old man is leaving his 45-year-old wife to remarry a much younger woman, he would be awarded the embryo because his new spouse has a statistically higher probability of carrying the pregnancy to term.
Looking forward
SB 1393 represents a major change in how Arizona courts may approach custody of unborn children. It also raises major implications on the possible future of child custody arguments and other civil laws. This is a very new piece of legislation with virtually no real-world experience in court yet. It is difficult to say yet how the law will be applied and how it may be modified in the future.